The Common Law [110]
the promise, one of two erroneous conclusions was naturally thought to follow. Either no assumpsit needed any quid pro quo, /3/ as there was clearly none in the older precedents, (they being cases of pure tort,) or else those precedents were wrong, and a quid pro quo should be alleged in every case. It was long recognized with more or less understanding of the true limit, that, in cases where the gist of the action was negligent damage to property, a consideration was not necessary. /4/ And there are some traces of the notion that it was always superfluous, as late as Charles I.
[285] In a case of that reign, the defendant retained an attorney to act in a suit for a third person, and promised to pay him all his fees and expenses. The attorney rendered the service, and then brought debt. It was objected that debt did not lie, because there was no contract between the parties, and the defendant had not any quid pro quo. The court adopted the argument, and said that there was no contract or consideration to ground this action, but that the plaintiff might have sued in assumpsit. /1/
It was, perhaps, the lingering of this idea, and the often repeated notion that an assumpsit was not a contract, /2/ to which was attributable a more enlarged theory of consideration than prevailed in debt. It was settled that assumpsit would lie for a mere omission or nonfeasance. The cases which have been mentioned of the reign of Henry VI. were followed by others in the latter years of Henry VII., /3/ and it was never again doubted. An action for such a cause was clearly for a breach of promise, as had been recognized from the time of Edward III. If so, a consideration was necessary. /4/ Notwithstanding occasional vagaries, that also had been settled or taken for granted in many cases of Queen Elizabeth's time. But the bastard origin of the action which gave rise to the doubt how far any consideration at all was necessary, made it possible to hold considerations sufficient which had been in debt.
Another circumstance may not have been without its influence. It would seem that, in the period when assumpsit [286] was just growing into its full proportions, there was some little inclination to identify consideration with the Roman causa, taken in its broadest sense. The word "cause" was used for consideration in the early years of Elizabeth, with reference to a covenant to stand seized to uses. /1/ It was used in the same sense in the action of assumpsit. /2/ In the last cited report, although the principal case only laid down a doctrine that would be followed to-day, there was also stated an anonymous case which was interpreted to mean that an executed consideration furnished upon request, but without any promise of any kind, would support a subsequent promise to pay for it. /3/ Starting from this authority and the word "cause," the conclusion was soon reached that there was a great difference between a contract and an assumpsit; and that, whereas in contracts "everything which is requisite ought to concur and meet together, viz. the consideration of the one side, and the sale or the promise on the other side, ... to maintain an action upon an assumpsit, the same is not requisite, for it is sufficient if there be a moving cause or consideration precedent; for which cause or consideration the promise was made." /4/
Thus, where the defendant retained the plaintiff to be [287] to his aunt at ten shillings a week, it was held that assumpsit would lie, because the service, though not beneficial to the defendant, was a charge or detriment to the plaintiff. /1/ The old questions were reargued, and views which were very near prevailing in debt under Henry VI., prevailed in assumpsit under Elizabeth and James.
A surety could be sued in assumpsit, although he had ceased to be liable in debt. /2/ There was the same remedy on a promise in consideration that the plaintiff would marry the defendant's daughter. /3/ The illusion that assumpsit thus extended did not mean contract, could not be kept up. In view of this admission and of the ancient
[285] In a case of that reign, the defendant retained an attorney to act in a suit for a third person, and promised to pay him all his fees and expenses. The attorney rendered the service, and then brought debt. It was objected that debt did not lie, because there was no contract between the parties, and the defendant had not any quid pro quo. The court adopted the argument, and said that there was no contract or consideration to ground this action, but that the plaintiff might have sued in assumpsit. /1/
It was, perhaps, the lingering of this idea, and the often repeated notion that an assumpsit was not a contract, /2/ to which was attributable a more enlarged theory of consideration than prevailed in debt. It was settled that assumpsit would lie for a mere omission or nonfeasance. The cases which have been mentioned of the reign of Henry VI. were followed by others in the latter years of Henry VII., /3/ and it was never again doubted. An action for such a cause was clearly for a breach of promise, as had been recognized from the time of Edward III. If so, a consideration was necessary. /4/ Notwithstanding occasional vagaries, that also had been settled or taken for granted in many cases of Queen Elizabeth's time. But the bastard origin of the action which gave rise to the doubt how far any consideration at all was necessary, made it possible to hold considerations sufficient which had been in debt.
Another circumstance may not have been without its influence. It would seem that, in the period when assumpsit [286] was just growing into its full proportions, there was some little inclination to identify consideration with the Roman causa, taken in its broadest sense. The word "cause" was used for consideration in the early years of Elizabeth, with reference to a covenant to stand seized to uses. /1/ It was used in the same sense in the action of assumpsit. /2/ In the last cited report, although the principal case only laid down a doctrine that would be followed to-day, there was also stated an anonymous case which was interpreted to mean that an executed consideration furnished upon request, but without any promise of any kind, would support a subsequent promise to pay for it. /3/ Starting from this authority and the word "cause," the conclusion was soon reached that there was a great difference between a contract and an assumpsit; and that, whereas in contracts "everything which is requisite ought to concur and meet together, viz. the consideration of the one side, and the sale or the promise on the other side, ... to maintain an action upon an assumpsit, the same is not requisite, for it is sufficient if there be a moving cause or consideration precedent; for which cause or consideration the promise was made." /4/
Thus, where the defendant retained the plaintiff to be [287] to his aunt at ten shillings a week, it was held that assumpsit would lie, because the service, though not beneficial to the defendant, was a charge or detriment to the plaintiff. /1/ The old questions were reargued, and views which were very near prevailing in debt under Henry VI., prevailed in assumpsit under Elizabeth and James.
A surety could be sued in assumpsit, although he had ceased to be liable in debt. /2/ There was the same remedy on a promise in consideration that the plaintiff would marry the defendant's daughter. /3/ The illusion that assumpsit thus extended did not mean contract, could not be kept up. In view of this admission and of the ancient